Orissa High Court
Union Of India vs Smt. Namita Padhi And Others on 3 March, 2012
Author: I.Mahanty
Bench: Indrajit Mahanty
ORISSA HIGH COURT, CUTTACK
F.A.O. NO.255 of 2006
From the judgment dated 22.3.2006 passed by the Railway Claims Tribunal,
Bhubaneswar Bench in Case No.TA/8/2001.
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Union of India ...... Appellant
-Versus-
Smt. Namita Padhi and others ...... Respondents
For Appellant : M/s Sri A.K.Mishra, N.R.Pandit,
S.K.Ojha, H.M.Das, B.P.Das
& A.K.Sahoo
For Respondents : M/s. Rama Prasad Mohapatra
& D.Mohapatra
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PRESENT:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY
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Date of Judgment : 03.03.2012
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I. Mahanty, J.The present appeal has been filed by the Central Railways, Mumbai, under Section 23 of the Railway Claims Tribunal Act, 1987, inter alia, seeking to challenge the judgment dated 22nd March, 2006 rendered by the Railway Claims Tribunal, Bhubaneswar Bench in Case No.TA/8/2001, whereby, the Railway Claims Tribunal directed the appellant-Central Railways, Mumbai to pay the respondent a sum 2 of Rs.4,00,000/- with interest @ 4% from the date of transfer of the case to the Bhubaneswar Bench, i.e. from 26.11.2001 within 60 days, failing which the respondents shall be liable to pay interest @ 6% from the date of filing apart from levying cash of Rs.2000/- and issuing certain directions to the manner in which the compensation amount shall be dealt with.
2. The facts leading to the present appeal are to the effect that Late Tarini Charan Padhi, husband of Respondent No.1 and father of Respondent Nos.2,3 and 4 while working as Assembler in Unitech Transformers (P) Ltd. at Khopoli Pan Road in the district of Raigad in Maharastra passed away due to an accident on 7th October, 2000 at the age of 38 years. It is asserted that the deceased was staying at Hariyalli village at Vikhroli East. On 7th October, 2000 while the deceased was undertaking journey from Khopoli to Vikhroli by a local passenger train, he accidentally fall from the running train which resulted in his death leading to filing of the claim of the respondents (wife and children) and the same was registered as T.A. No.8 of 2001. This claim was originally filed at the Railway Claims Tribunal, Mumbai Bench and the same was transferred to Bhubaneswar Bench, since the respondents returned to Odisha which is their permanent abroad, after the death of the sole bread earner Late Tarini Charan Padhi. 3
3. It appears from the record that while the Central Railway filed its written statement claiming therein that the deceased was not the bona fide passenger and "knocked down from the train" does not mean "falling down from the train" and hence, the claim application was not covered under Section 123 & 124-A of the Railway Act, 1989. It is further averred that the claim was to prove that the death took place due to untoward incident while traveling as passenger in a railway train. Accordingly, the Tribunal framed the following four issues:
(i) Whether the Applicants prove that the deceased accidentally fell down from the running local train from Khopoli to Vikhroli on 7.10.2000 and succumbed to injuries ?
(ii) Whether the Respondents prove that the alleged incident does not come within definition of untoward incident as provided under Section 123 of Railway Act?
(iii) Whether the Respondents prove that the deceased was not a bonafide passenger ?
(iv) What reliefs ?
After the issues framed, claimants have filed the following documents before the claims Tribunal:
(i) Railway Season Ticket valid till 22.10.2000
(ii) Copy of the messge by Vikhorli Station Master to G.R.P. Vikhroli.
(iii) Inquest Report.
(iv) Post Mortem Report.4
They also examined two witnesses. The Respondent No.1 examined herself as A.W. No.1 and one Narayan Padhy as A.W. No.2 to prove that the deceased was a bonafide passenger and the incident was an untoward incident. The Railways have neither adduced any evidence nor have examined any witness. Thereafter, the findings of the Tribunal came into the following effects:
(i) The deceased was a bonafide passenger as the police have recovered the Railway Pass from the deceased.
(ii) The incident occurred near the railway station, during broad day light and busy hours at about 10.30 hrs in the morning. The respondents have not led any evidence. Not even a piece of paper filed. The applicants have filed inquest, spot panchanama and Post Mortem report. The railway is to find the real cause of the incident. The burden is definitely on the respondents to prove that the deceased was knocked down by a particular train. Since the respondents have failed and neglected to prove the knocked down version, it is a case under untoward incident. Hence, allowed the claim and awarded Rs.4,00,000/- along with interest @ 4% from the date of transfer of O.A. to Bhubaneswar Bench.
4. Challenging the said Award the present appeal has been filed on the following grounds:
5
(i) The incident of death occurred on account of knock down by some unknown train. Hence, the same will not come under "untoward incident".
(ii) Onus is on the claimant to prove that the incident is an untoward incident.
(iii) No issues were framed by the Tribunal.
5. The Central Railways (appellant herein), inter alia, contended that while the Tribunal disbelieved the pleadings of the Railways and also erroneously shifted the onus on the Railways instead of on the claimant for which reason, the Tribunal committed gross error in law apparent on the face of the record justifying setting aside the award in the present appeal. It is further contended that no evidence had been produced on behalf of the claimant in support of their claim of untoward incident leading to the death of the deceased. It is further contended that in the absence of any evidence on the part of the claimant, functioning the responsibility of the Railways to ascertain the veracity or otherwise story of the claimant before the Tribunal was erroneous in law.
6. Ms.D.Mohapatra, learned counsel appearing for the respondents, on the other hand, argued that the claimant had filed the Railway ticket which was valid up to 22.10.2000, copy of the message by Vikhroli Station Master to G.R.P. Vikhroli, the copy of the 6 inquest report and post-mortem report. Apart from the Respondent No.1 examined as A.W. No.1 and one Narayan Padhy as A.W. No.2 to prove that the deceased was bona fide passenger and the death of the passenger occurred due to untoward incident by traveling on Indian Railways, reliance was placed on the judgment of the Hon'ble Andhra Pradesh High Court in the case of Union of India v. B.Koddekar and others, 2003 ACJ 1286.
7. In the aforesaid judgment, the Division Bench of Andhra Pradesh High Court placed reliance on the judgment of the Division Bench of Madhya Pradesh High Court in the case of Raj Kumari v. Union of India, 1993 ACJ 846 (MP) wherein the said High Court has dealt with Section 82-A and 68 of the Railways Act, 1890 (old) and the same is quoted hereinbelow:
"Normally, under sections 101 and 102 of the Evidence Act, the burden to prove such facts, on which the legal right or liability depends, is on such person who asserts existence of these facts. But the question before us is whether the burden of proof that the deceased held a valid ticket, pass or permission during his journey, in which he died in accident can be placed on his dependants. Obviously, such burden of proof is impossible to be discharged by the dependants, who can have no means of knowledge, whether the deceased, before boarding the train, had purchased a valid ticket, pass or permission from the railway authorities. It is likely that such a deceased passenger held a valid ticket, pass or permission, but the same is lost in the accident with the death of person and loss of his belongings, if any."7
8. Learned counsel for the respondents has also placed reliance on a further judgment of Andhra Pradesh High Court in the case of N.Buchilingam and others v. Union of India, 2005 (2) T.A.C. 272 (A.P) and in particular finding, at Para-14 thereof which is quoted hereinbelow:
"14. The other issue touches the question is as to whether the death of the deceased occurred on account of accidental fall. The fact that the dead body was noticed and recovered by the Railway Staff near railway track prima facie discloses that the death of the deceased occurred on account of an accident. The nature of incidents that may result in injuries or death of bona fide passengers, involving a train is elaborately dealt with in Section 123 of the Railways Act. The term 'accidental fall' referred to in Clause (c) thereof, does not require that the accident shall be of a particular nature. Once an individual receives injuries or succumbs to them, the liability of the railways arise. It is saved only under certain circumstances referred under Section 124-A of the Act. As long as the circumstances stated therein are not pleaded or proved, the liability against the respondent to pay compensation subsists. Being the provisions intended for the welfare of the victims of accident or their dependants, Sections 123 and 124-A need to be given a liberal construction. There are no factors to indicate that there was any attempt on the part of the appellants to present a fictitious claim. The fact that the dead body was found at a place hundreds of kilometers away from their residence, the deceased was seen off by P.W.2 at the Railway Station and the tickets were recovered from his body, clearly disclose that the death occurred only on account of accidental fall from the train. Therefore, the appellants are entitled to be paid the compensation as provided for under the relevant provisions. The compensation provided for such instances under the relevant provisions as they stand now is Rs.4,00,000/-."8
9. Ms. Mohapatra strenuously urged that the term "untoward incident" has been described in Section 124-A of the Railways Act, 1989 which is a very wide term involving any incident which may leave to death or injury in course of travel on the Indian Railways. It is submitted that Section 124-A was introduced as per Railway (Amendment) Act 28 of 1994 and the expression "untoward incident"
in the Railways Act was inserted by Parliament not only to cover injury or death arising out of Railway incident but also covers any injury or death which may occur while crossing or traveling on the Indian Railways. It is submitted that prior to Railway (Amendment) Act, 1994, the Railways could have grant compensation only to the victims of an "accident". Therefore, Parliament decided to insert a new category of disasters, both man-made and otherwise, to be an injury death occurs in course of travel on Indian Railways, the same would be covered under the term "untoward incident" thereby justifying the claim for damages or compensation under the Railways Act, 1989. In this regard, reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Rathi Menon v. Union of India, (2001) 3 SCC 714 and in particular, Paragraphs-13, 14 and 15, which are quoted hereinbelow:
"13. The appellant's claim for the compensation was based on Section 124-A of the Railways Act, 1989 (for short "the Act"). The said section itself was introduced as per Railway (Amendment) Act 28 of 1994. The section 9 provided for awarding compensation to victims of any "untoward incident" which occurs in the course of working of a railway. The expression "untoward incident"
was alien to the Railways Act before Parliament inserted such an expression in the statute as per the Amendment Act 28 of 1994. Prior to it the Railways could have granted compensation only to the victims of an "accident". As the definition of accident in the Act did not embrace instances of other types of disasters which frequently happened during train journeys, Parliament, in its wisdom, decided to insert a new category of disasters, both man-made and otherwise, to be the causes of action for claiming compensation.
14. It was in compliance with the aforesaid intention of Parliament that the category "untoward incident" was included by defining its contours in Section 123 of the Act. The section consists of two segments. In the first segment acts such as terrorists acts, riotous attacks, robbery and dacoity which visit the passengers in the train as well as those who wait within the precincts of a railway station are included. In the second segment, which is the relevant part for the purpose of this case, is included "the accidental falling or any passenger from a train carrying passengers".
15. Now we have to see Section 124-A which is the provision imposing liability on the Railway Administration to pay compensation to the victims of untoward incidents. Its proviso excludes from its purview persons who committed or attempted to commit suicide, persons who inflicted injury by self, and those who committed criminal acts or acts done in a state of intoxication or insanity and also the cases affected by any natural cause of disease etc. After excluding such persons and cases, Section 124- A can be read thus:
"124-A. When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the Railway Administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the Railway Administration shall, notwithstanding anything contained in 10 any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident."
10. After taking into consideration the submissions made by the respective parties to the present case and in particular, the judgment of the Hon'ble Supreme Court in the case of Rathi Menon (supra), this Court is left with no alternative other than to hold that the present appeal by the Central Railways lacks merit and the contentions raised on behalf of the appellant are no longer res integra and have been settled by the Hon'ble Supreme Court.
Accordingly, the appeal stands dismissed. The LCR be remitted to the appropriate authority immediately for necessary compliance.
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I.Mahanty, J.
ORISSA HIGH COURT : CUTTACK 3rd March 2012/RKS